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More Defense of Preservation Law

On the separate powers of the Zoning and Preservation Laws, and also the distinction between a functional change in zoning versus a change in the Zoning law. (A letter to the Syracuse Common Coucil)

March 10, 2008

Dear Councilor:

The argument that the Syracuse's preservation law is subject to, a part of, or otherwise subordinate to the zoning law, is what I heard rumored to be the current working interpretation of city legal counsel. However, I see some potential errors of reasoning with this interpretation when viewed in full context.

Let's consider the statement: Syracuse's Landmark Preservation operates through the zoning authority of the city.

I noticed on the city's website that the landmark preservation information is listed on the zoning page; and I noticed that the preservation ordinance is incorporated in a section of the zoning law documents. Case closed? I don't think so. Practical and intuitive organization and classification of documents for general public access? Sure. Sloppy organization of legal documentation? Perhaps. However, I trust it is self-evident that the semantic classification and organization of legal documents does not supercede the meaning of the state defined statutes being classified.

It is my understanding that the zoning law and preservation law are two separate and distinct statutes defined by the state.In addition, the preservation law statute was created to provide local governments augmented powers beyond what the zoning law provides to protect landmark properties. The state's opinion (in the preservation law memo) on the meaning and intent of the preservation law statute states this explicitly.

To my understanding, the city is authorized by the state to implement the preservation law statute as defined by the state (as is the case with most or all other local government statutes). Therefore, the only valid implementation and interpretation of the preservation law is the one set forth by the state. And, according to the state, the zoning and preservation laws are separate, and the preservation law is intended to augment the powers of landmark preservation.

Now, if the preservation law is construed to be subject to the same enforcement limits as provided by the zoning law (i.e, a property owner's formal protest of change triggers the requirement of a 2/3 +1 vote of the common council for passage), then the preservation law statute provides no additional powers beyond the zoning statute; it is superfluous and irrelevant.

Clearly, it was not the intent of the state to create, or the city of Syracuse to implement, a senseless statute. I urge you and the rest of the common council to press city hall lawyers (and state lawyers) to review the preservation law in full context and provide a legal opinion that fully addresses the points just discussed.

Part Two

In the spirit of completeness, with regard to, I believe, a secondary and subordinate argument that assignment of preservation status constitutes a change in the zoning map and therefore a change in the zoning law and therefore subject to zoning law approval rules, I suggest such argument is overly simplistic.

A "change in the zoning map" may, perhaps, in some technical sense, be construed as a change in the zoning law. But a "change in the zoning map" does not necessarily imply a change in zoning. For example, changing the colors or font or nomenclature of the map are map changes but clearly not zoning changes; changes in some detail of administrative rules may constitute changes in the zoning law, but not in zoning. One should not conflate the two.

The assignment of preservation protection does not impart a functional change in zoning. In fact, the LP ordinance specifically denies LPB any authority to effect zoning changes. So, it cannot be construed as doing so.

So, are we to interpret the zoning law intelligently and in the spirit intended? Or are we to interpret the law according to a narrow, dumbed down, dubious, unintuitive, non-standard, and unprecedented view that is clearly not in the spirit, and undermines the intent, of existing statutes? Once again, please press city hall lawyers to provide a legal opinion addressing this point as well.